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7th Symposium of Lawyers - Bagzhan Zhakupov
“Diversity of controls and sanctions in goods road transport: helping your hauliers through the maze of unharmonised applications” Bagzhan ZHAKUPOV The shipper’s liability as regards instructions given to carriers The procedure for organising the road transport of goods as well as the rights, obligations and liabilities of the parties are defined in the civil legislation of the Republic of Kazakhstan, by the law of the Republic of Kazakhstan “Governing road transport”, by the rules governing the carriage of goods, ratified by the order of the Ministry of Transport and Communication of the Republic of Kazakhstan on 22.12.2004 No 478-I, as well the corresponding international agreements, applicable within the Republic of Kazakhstan. Unlike international legislation, the internal legislation of the Republic of Kazakhstan defines in a more precise manner the rights and obligations of participants imposed by the agreement relating to transport, and defines relatively clearly the extent of liability of each of them in the event of an infringement of transport rules. Therefore, pursuant to the standards of the legislation in force within the Republic of Kazakhstan, the shipper has the right to refuse transport in the event that the vehicle for transporting the goods in question is unusable. This right is imposed and may not be limited or changed by agreement between the parties. Nevertheless, the legislation of the Republic of Kazakhstan clearly defines not only the conditions under which the shipper is entitled to refuse to load a vehicle that is unusable for the goods in question, but also requires the shipper to draw up a document as proof of this. The legislation of the Republic of Kazakhstan also gives the carrier the right to refuse a load if the volume or nature of the goods is not as advised. Drawing up a document as proof of this is also mandatory. Article 696 of the civil legislation of the Republic of Kazakhstan stipulates that loading is carried out by the shipper or the carrier in accordance with the procedure and deadlines specified in the agreement. Article 3 of the law “Governing road transport” obliges the carrier to monitor loading, arrangement and securing of the goods with the aim of complying with the established standards for loading vehicles, to ensure that transportation and the goods are safe. The goods must be handed over for carriage, by the shipper, having been packaged, sealed, and labelled, the volume, exact weight and quantity must be stated. The goods’ packaging must be intact and not broken, and must not bear any traces of damage (tears, crumples). On the request of the carrier, the shipper must rectify any faults noted. Should he/she fail to do so, the carrier will note this on the waybill. The cost of damage caused (non-arrival, damage and deterioration of the goods during transportation) as a result of the causes mentioned on the waybill will not be reimbursed by the carrier. During transportation, the shipper is entitled to make arrangements for the goods, i.e. the shipper may change the destination, require delivery to another recipient or the goods to be returned. However, it is essential to meet certain conditions: 1) the order must be issued in writing, 2) customs rules must be applied, 3) the rules for transporting goods must be applied as regards packaging and labelling, in particular when transporting high risk goods, and 4) payment must be made for transportation already carried out and all the costs of implementing an order must be reimbursed. The right to make arrangements for the goods is granted not only to the shipper but also to the holder of the order document relating to the goods. In the event that the latter is not named in the contract or in the transport documents, before executing his/her order, the carrier must ensure that the person issuing the order is authorised to do so. According to the general rules of civil legislation, liability for non-fulfilment of obligations arises in the event of guilt, i.e. where the debtor is personally at fault for the infringement. At the same time, this is a principle of liability irrespective of the fault that is applied in relations relating to transport, i.e. that the debtor is actually liable for breaching the obligation, although he/she was personally not at fault for the infringement, i.e. that the obligation has not been properly fulfilled because of circumstances which, from an objective point of view, were beyond the control of the debtor. The fact that an obligation has not been fulfilled or unsatisfactorily fulfilled is deemed to be a breach of an obligation. Therefore, the law of the Republic of Kazakhstan “Governing road transport” establishes the following liability in the event that obligations are not fulfilled. In the event that vehicles specified in the contract fail to arrive, the carrier pays a fine to the shipper of ten thousand monthly assessment indicators (MRP = 1168 tenge, approximately 10 US$) for each non-arrival, unless specified otherwise in the contract. Should the shipper refuse to use the total or partial capacity of vehicles as outlined in the contract, he/she must pay a fine to the carrier of ten MRP for each refusal to use a vehicle. As regards the stoppage of vehicles able to carry a load of more than ten tonnes that have arrived for loading or unloading outside the specified times, the shipper or the recipient, if the delay is their fault, pay the carrier a fine specified in the contract, and in the absence of an agreement – for each hour for which a vehicle is stationary, equivalent to fifteen percent of the MRP. In the case of vehicles, which are late as a result of the fact that the corresponding contractual documents needed to complete customs, health and safety or other formalities, are not attached to the waybill, the shipper or the recipient pay the carrier a fine equivalent to fifteen percent of the MRP. In the event that prohibited goods are presented for road transport or the goods require special precautionary measures during transport, with incomplete details of the names or details of the goods, the shipper, apart from losses caused, pays the carrier, for the service provided, a fine that is five times higher than the figure appearing in the contract. In the event that delivery deadlines are not met, the carrier pays the shipper a fine equating to five percent of the transport payment for each day that the delivery is late, but no more than fifty percent of transport payments, if he/she cannot prove that he/she was not responsible for the delay. The aforementioned fines represent the minimum penalty for infringement of the conditions relating to the transport contract. The parties are entitled to apply more severe sanctions as regards repayment for losses and other expenditure of an amount demonstrated by the shipper or the carrier. The shipper is liable as regards the carrier for losses caused as a result of late provision of the documents needed to transport goods, as well as because of the irregularity, inaccuracy or lack of information mentioned by the latter on the waybill. Shippers and recipients are obliged to pay compensation for losses caused by them as a result of overloading, damage to transport vehicles during loading or unloading, incorrect loading, packing or the securing of goods, with the exception of cases where these operations are undertaken by the carrier. The shipper and the recipient are released from liability in the event of an accident or a case of force majeure, as a result of which it has become impossible to carry out loading-unloading procedures, unless specified otherwise the contract to transport the goods. The carrier is responsible for protecting goods from the moment when he/she takes charge of them for carriage, until the moment when they are delivered to the recipient. The carrier is liable for a loss of goods if he/she cannot prove that he/she is not responsible for the loss or partial non-arrival of, or damage to and deterioration in goods. Furthermore, the carrier’s liability is based on the principle of the limitation of liability. The carrier pays compensation for damage caused when transporting goods of the following amounts:
The value of the goods is defined on the basis of the price of the goods appearing on the invoice or in the contract, and in the absence of an invoice or mention of the price in the contract, the value is determined on the basis of the price that is usually paid for similar goods in similar circumstances. At the same time as paying compensation for losses/damage caused by a loss, non-arrival of or damage to the goods, the carrier repays the shipper the price paid for carriage of the lost, partially missing, damaged or deteriorated goods. Circumstances that could give rise to property disputes between the shipper, the recipient and the carrier are certified by statements on the waybill or on the consignment note (deterioration of or damage to the goods, inconsistency between the name, the weight and the number of parcels, a breach or lack of seals, immobilisation of vehicles being loaded or unloaded beyond the established standard periods and other circumstances). The statements in question must be legalised by the signatures of the shipper and the carrier. Unilateral statements are not valid. In the case of a difference between the shipper and the carrier regarding the circumstances that could give rise to property disputes, documents are formalised in a given format. In the event of a refusal to draw up a document or to add statements to the waybill in the case of partial non-arrival, deterioration in or damage to goods, the document is drawn up in the presence of uninterested people or a representative of an uninterested organisation. A statement must be made on the waybill regarding the drawing up of a document. The legislation of the Republic of Kazakhstan does not include criminal liability for the corporate entity, but officials who are directly responsible for a punishable criminal act may form the subject of criminal liability. |
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